Section 2 & other compulsion notices

A fundamental tenet of our criminal justice system is that a suspect of a criminal offence has the right not to incriminate themselves and provide the investigators or prosecuting authorities with evidence against them.

There are some very important and far-reaching exceptions to this.

Section 2 Notices

Section 2 of the Criminal Justice Act 1987 which created the Serious Fraud Office (SFO) creates the significant power to;

require [a] person whose affairs are to be investigated… or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation…

and

require [a] person under investigation or any other person to produce…any specified documents which appear to the Director to relate to any matter relevant to the investigation….

Compliance with this request is not optional and failure to answer such questions or provide relevant documents is a criminal offence of itself.

Competition and Markets Authority

The Competition and Markets Authority (CMA) also has similar powers afforded to it under Section 26 of the Competition Act 1988 to compel the production of documents and an explanation regarding the document

The Insolvency Service

The Insolvency Service has similar powers to compel officers or directors of companies to provide documents or submit for interview, where issues of bankruptcy, insolvent trading or acting in breach of the Company Directors Disqualification Act are alleged.

Financial Conduct Authority

The Financial Conduct Authority (FCA) is able to utilise the same powers as the CMA under Section 26 of the Competition Act 1988.

It also has significant powers of its own by virtue of the Financial Services and Markets Act 2000 (FSMA) to compel compliance with its investigations by interviewing company officials and directors or requiring the production of documentation. It may exercise these powers for investigations being carried out for alleged breaches within the UK, but may also exercise them at the request of overseas regulators.

In all of these examples you have the right to be legally represented. We can advise on the best way to deal with this stressful experience and minimise the impact of it on your professional life contain any reputational damage issues.

Please speak with any of our key contacts for assistance with any of these issues.